Last month the Court of Appeal handed down its judgement in the case of McMahon v Watford Borough Council; Keifer v Hertsmere Borough Council [2020] EWCA Civ 497. It found in favour of the two local authorities.
I was the reviewing officer in the McMahon case and as with all reviewing officers it is always pleasing to win a case in court, particularly in the Court of Appeal. It is an acknowledgment that we have done things correctly. However, what pleased me more in this case is the fact that the Court of Appeal has again taken a practical stance in relation as to how homelessness officers should be dealing with the PSED when making homeless decisions.
Since the cases of Pieretti and Hotak officers have been forced to make decisions around whether an applicant is disabled and the PSED engaged when ultimately the main question they needed to answer was whether the applicant is vulnerable or intentionally homeless or even whether a property is suitable etc. It is now evident that the Court of Appeal is taking a more pragmatic approach in relation to PSED as seen in the cases of Panayiotou v Waltham Forest, Haque v Hackney and this recent case. In McMahon v Watford Lord Justice Lewison highlighted what he said in his judgement in the case of Panayiotou v Waltham Forest (para 57) when detailing the differences between disability and vulnerability:
"In the first place the defined term is a different word. Second, although it is true that there is a blanket prohibition on discrimination on the ground of disability, there is also a positive duty to treat a disabled person more favourably. That duty is a duty to make "reasonable adjustments". What those adjustments are in any particular case must depend on the extent of the disability in question. By contrast, if a homeless person has a priority need and has not become homeless intentionally the local authority owes the same duty to that person, namely to secure the provision of accommodation, irrespective of whether the test (whatever it is) is only just satisfied or is obviously satisfied by a wide margin. The degree of disability will no doubt go to the fulfilment of that duty by securing the provision of suitable accommodation, but the duty itself will have been triggered. Third, whereas the test of disability in the Equality Act 2010 takes an ability to carry out normal day to day activities as its reference point, Part VII of the Housing Act 1996 is all about finding accommodation. It is also important to emphasise that an assessment of whether someone is vulnerable within the meaning of section 189(1)(c) is a "contextual and practical" assessment: the Hotak case, at para 62. In the case of a person who falls within the category of "old age" the focus is not on his or her chronological age but on the effect of old age on his or her ability to deal with being homeless. Likewise in the case of a disabled person the focus is not on the extent of his or her disability, but on the impact of that disability, together with whatever support is available, to deal with being homeless. By contrast the definition of "disability" in the Equality Act 2010 is concerned with an individual's unaided capacity to carry out normal day-to-day activities. Fourth, the use of the definition in the Equality Act 2010 focuses on only some of the characteristics in section 189(1)(c) whereas the concept of vulnerability applies to all of them."
In my McMahon review decision I did not expressively state whether I considered the applicant to be disabled. I focused on how his medical problems affected him and went to the heart of the issue which was to consider whether when homeless will he suffer more harm than an ordinary person if made homeless, i.e. vulnerable. This approach was accepted by Lord Justice Lewison. In para 68 he stated:
"What matters is the substance of the assessment not its form. Provided that a reviewing officer appreciates the actual mental or physical problems from which the applicant suffers, the task will have been properly performed. As Ms Rowlands put it, the task of the reviewing officer is not to label; it is to understand. Just as a failure to mention the PSED or a failure to tabulate each feature of it will not necessarily vitiate a vulnerability assessment, so a mere recitation of the PSED will not save such an assessment if it has failed in substance to address the relevant questions: Kannan at [24].”
It was also reassuring to hear from Lord Justice Lewison that an officer is not required to state whether an applicant is disabled or not. In para 77 he states:
“In my judgment the judge took far too narrow a view. As Haque shows, it is not necessary for a reviewing officer to make an express finding whether a person's conditions do or do not amount to a disability for the purposes of the Equality Act. So far as I can tell, the same is true of Kanu.”
Conclusion
As officers who have to make difficult and complex homeless decisions this judgement reaffirms the fact that any assessment we make should be a practical one. The key question is not whether a person is disabled but how any disability, other protected characteristic or other circumstance impacts on that person. We are then required to use this information to go direct to the matter we are trying to address, e.g. are they vulnerable, was their act deliberate in the context of intentionality, is the property suitable etc. That is, make good and reasonable decisions.
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